Opinion
No. 8:01CR315
May 28, 2002
MEMORANDUM AND ORDER
Before me are the defendants' objections, Filing Nos. 36 and 38, to the magistrate's report and recommendation, Filing No. 34 (hereafter, RR), recommending that the defendants' motions to suppress, Filing Nos. 18 and 19, be denied. The government submitted a brief in response to the defendants' objections. Defendant Servando Garcia asks for oral arguments on his objections. That motion is denied.
I have now reviewed de novo the record, including the report and recommendation, the defendants' objections, the parties' briefs, the transcripts of the suppression hearings and the exhibits introduced, Filing Nos. 32 and 33, and the applicable law. I conclude that the magistrate's recommendation should be adopted. The defendants' motions to suppress are hereby denied.
Factual Background
Because defendant Morreno bases his objections to the report and recommendation on alleged factual inconsistencies in the testimony of law enforcement witnesses at the suppression hearing, I have carefully reviewed the transcripts of those hearings and here present a summary of that testimony independent of the magistrate's summary in the report and recommendation.
On October 11, 2001, Omaha police officers applied for a search warrant for 3130 Chicago Street, Apartment 4. The affidavit for the warrant stated that Omaha Police Department (OPD) Officer Lang received information from a confidential informant that the confidential informant had observed a person called "Benito" selling methamphetamine inside the apartment within the past twenty-four hours. The confidential informant also observed additional methamphetamine packaged for sale; Benito allegedly told the confidential informant that he would be selling this methamphetamine from the apartment. The confidential informant claimed that Benito had a semiautomatic handgun on his person and a revolver and another semiautomatic handgun in the apartment. Officer Lang attested that the confidential informant had provided reliable information in the past; had made a controlled purchase of methamphetamine under Lang's supervision; was familiar with methamphetamine and how it was sold; and was not on parole, probation or work release. Lang checked utility records, which indicated that a person named "Servando Garcia" had received service at the address for over a year. Lang's check of Douglas County computer entries for "Servando Garcia" revealed two entries with birth dates of October 23, 1970, and May 14, 1974, but no other information. A Nebraska Douglas County Court judge signed the no-knock warrant. Filing No. 32, Ex. 1.
Visibly armed OPD officers executed the warrant on October 12, 2001, around 11:00 a.m. The officers found nineteen-year-old Amanda Smith in the apartment's living room. In the bedroom, they found Amanda's fourteen-year-old sister, Marie Smith, asleep in bed with defendant Servando Garcia. The three were handcuffed and put in the living room as OPD narcotics officers began to search the apartment. Officers found a large amount of methamphetamine, drug records, and guns.
Lang, who described himself as the "case officer" for the execution of the warrant, testified during the suppression hearing that the sisters tried to talk to each other and to the officers during the search. Lang said that Amanda volunteered information that "El Gordo," the occupant in Apartment 7 across the hall from Apartment 4, supplied methamphetamine to defendant Garcia. Filing No. 32, Transcript, 22:21-25, 26:15-21 (hereafter, TR). He further testified that OPD Officer Clark removed Amanda from the apartment when she refused to stop talking and seated her on the steps going up directly outside the door of Apartment 4. TR 27:6-25.
Officer Clark, however, testified that he removed Marie rather than Amanda from the apartment. TR 92:15-21. He allowed Marie to return to the apartment when she promised to be quiet, but because she continued to be disruptive, he removed her a second time to the steps directly outside the door to Apartment 4. TR 93:12-19. He left the apartment door partially open so that he could hear what was happening inside. TR 97:7-23. Clark testified that during this second removal, Marie told him about other occupants of the apartment building who were distributing drugs. She allegedly claimed that some of the methamphetamine in Apartment 4 belonged to the people in Apartment 7, who at times stored their drugs in Apartment 4. TR 95:1-8. Clark said this information conformed with information he had received during a briefing prior to the execution of the warrant that individuals in Apartment 7 were connected to the drug sales in Apartment 4. TR 126:7-18. He testified that Lang also attended this briefing, TR 128:16-24, but Lang denied on cross-examination having any knowledge about the Apartment 7 prior to hearing the Smith sisters' unsolicited information. TR 42:16-43:1.
Clark, who was dressed in his SWAT black outfit and wearing a side-arm, TR 100:23-101:13, testified that while he stood outside Apartment 4 talking with Marie, he saw a man coming up the stairs toward the landing on which he was standing. As the man reached for the doorknob of Apartment 7, Clark said he got the man's attention by asking how he was doing. TR 103:5-17. When Clark asked the man if he lived in Apartment 7, the man responded, in English, that he had come to visit his cousin, who did live there. TR 104:9-16. He told Clark his name was Mario Morreno. TR 105:9-12. Clark testified that Morreno was so nervous that his legs were shaking. TR 105:17-21. When Morreno started reaching toward his right front pants pocket, Clark ordered him to stop; Morreno complied. TR 105:24-106:13.
Lang testified that when he heard Clark order someone to keep his hands out of his pockets, he went out to the landing to investigate. TR 31:23-32:5, 58:20-59:23. Lang said he asked the man with Clark if he lived in Apartment 7, and the man responded in English that he was visiting a friend. TR 32:23-33:11. Lang testified that neither he nor Officer Clark touched the man, now identified as the defendant Morreno, during this initial interrogation, but also that Morreno made no attempt to leave. TR 33:17-24. Lang commented on Morreno's nervousness, apparent from his visibly shaking legs. TR 34:9-13. Lang said Clark had to warn Morreno twice more to keep his hand out of his pants pocket. TR 34:20-22.
According to Lang's testimony, Lang advised Morreno that he was going to conduct a pat-down search of his person. He asked Morreno for his backpack, which Morreno gave him. Lang placed the backpack on the floor, then conducted the pat down. TR 35:2-8. During the pat down, Lang heard Clark ask Morreno in English for consent to search the backpack, which Morreno gave. TR 35:12-23.
According to Clark's testimony, Lang asked Morreno during the pat down for permission to search his person. TR 108:15-24. Lang handed Clark the backpack once Clark had Morreno's consent to search it. TR 109:12-21. Clark said he then asked Officer Heath, who was inside the apartment as part of the search team and who speaks Spanish, to come out on the landing to ask Morreno in Spanish for permission to search his person and the backpack. TR 110:8-13, 111:13-112:14. Morreno consented in Spanish. TR 112:4-9, 151:19-152:8, 159:15-24. On cross-examination, however, Heath admitted that his report said nothing about him translating the request for consent to search. TR 163:5-164:6. Clark discovered methamphetamine, money, and a gun in the backpack, but indicated that Lang found no contraband on Morreno's person. TR 108:25-109:2, 113:15-23, 115:6-17. When Clark found the contraband in the backpack, Lang and Heath testified that Morreno stated, "Oh shit." TR 38:4-16, 156:13-20. The officers immediately handcuffed Morreno and placed him under arrest. TR 114:2-25.
Marie Smith also testified at the suppression hearing, and her version of events differed significantly from those of the three officers who testified. The magistrate, however, found that Smith's testimony lacked credibility and gave her testimony "very little weight." RR at 19. Smith testified that while she was sitting on the steps outside Apartment 4 for the second time, she saw a man whom she did not know — Morreno — approach the door of Apartment 7 and prepare to knock. TR 192:18-193:22. Before he could complete the motion, two police officers approached him, took his backpack, pushed him against the door of Apartment 7 hard enough that his face hit the door, and then went through the backpack. TR 194:6-14, 199:7-200:17. She claimed not to have heard the officers say anything after approaching Morreno, but to have heard Morreno ask something like, "What was that for?"; the officers did not respond. TR 196:20-197:10. She further claimed to have heard Officer Clark speaking Spanish. TR 197:11-198:9.
On cross-examination, Smith testified to only occasional drug use and claimed to have not known that methamphetamine was in the apartment. TR 207:6-23. She testified that she got her methamphetamine not from defendant Garcia but from a friend, "Megan." TR 212:18-213:3. She denied talking to officers during the search about the occupant of Apartment 7, "Gordo," but she acknowledged that defendant Garcia and "Gordo" were friends. TR 210:2-8, 211:17-212:13. Further, she claimed that she had lied both about Garcia's involvement in drug trafficking and about the supplier relationship between Morreno and Gordo during an interview with OPD Officer Pam Heidzig following her arrest. TR 213:9-215:5, TR 224:21-225:17.
The government called Officer Heidzig to testify about her interview of Marie Smith.
Smith allegedly described two trips to Denver with defendant Garcia's supplier, Martin, to pick up large quantities of drugs. Filing No. 33, Transcript, 9:10-11:7 (hereafter, TR2). After Martin moved to Mexico to avoid arrest in Nebraska, Martin arranged his drug deliveries through telephone calls to Garcia and Smith. TR2 11:10-17. Smith admitted to also making drug deliveries for Gordo, the occupant of Apartment 7. TR2 11:18-12:1. Smith identified Morreno as a man who had been living with Gordo for approximately a month before the search. Morreno allegedly supplied Gordo and Garcia with methamphetamine from Mexico. TR2 12:5-13. Heidzig testified that she found Smith's information credible because its detail corroborated other information Heidzig knew about drug activities in South Omaha. TR2 13:5-13.
Discussion Servando Garcia: Sufficiency of Affidavit
The magistrate found reliable the confidential informant on whose information Lang's affidavit was based. Consequently, the magistrate found that the state court judge was entitled to conclude "there was probable cause to believe that evidence of a crime would be present at 3130 Chicago Street, Apartment No. 7 [sic]." RR at 18. Garcia, however, contends that because Officer Lang's affidavit was factually insufficient, the state court judge did not have probable cause to issue the search warrant.
Specifically, Garcia attacks the reliability of the information provided by Lang's confidential informant. Garcia contends that the affidavit is deficient because it does not state whether the confidential informant was a direct party to alleged drug transactions in Apartment 4; does not indicate how many times the confidential informant provided Lang with information or whether that information or the confidential informant's single controlled buy resulted in arrests or convictions; and does not link the person whom the confidential informant identified as the gun-carrying "Benito" to the occupant of Apartment 4, Servando Garcia. Since OPD did not find a criminal record for Garcia, he argues that OPD should have further investigated the reliability of the confidential informant's information before applying for the warrant.
A reviewing court will uphold an issuing judge's determination of probable cause if the issuing judge had a "substantial basis" to conclude that a search would uncover evidence of criminal activity. Illinois v. Gates, 462 U.S. 213, 236 (1983). When reviewing the sufficiency of an affidavit to support probable cause, a court must consider the totality of the circumstances. United States v. Searcy, 181 F.3d 975, 981 (8th Cir. 1999). One of those circumstances is the reliability of the confidential informant, which "can be established if the person has a history of providing law enforcement officials with truthful information." United States v. Wright, 145 F.3d 972, 975 (8th Cir. 1998) (citing United States v. Williams, 10 F.3d 590, 593 (8th Cir. 1993)) (past controlled buys under affiant officer's supervision established confidential informant's reliability).
Under this test, the number of times the confidential informant provided information and the results of the controlled buy are immaterial to whether the confidential informant's was truthful. Although more specific, detailed information would have been preferable to a bare-bones affidavit such as this, Officer Lang nevertheless attested that the confidential informant had a history of providing reliable information and had additionally made a controlled purchase of methamphetamine under Lang's supervision. State court judges read applications for search warrants in a "common-sense and realistic fashion," making "practical decision[s]" about probable cause based on the totality of the circumstances. United States v. Gladney, 48 F.3d 309, 312 (8th Cir. 1995). Lang's statements that the confidential informant had provided reliable information in the past, combined with the confidential informant's personal observations of methamphetamine, methamphetamine sales, and guns in Apartment 4, established the confidential informant's reliability under the totality of the circumstances. The state court judge therefore had a substantial basis to conclude that a search warrant would uncover evidence of a crime in Apartment 4. Probable cause existed for issuance of a search warrant.
The magistrate correctly recommended denial of Garcia's motion to suppress. Since I find that the search warrant was supported by probable cause, I do not adopt the magistrate's alternate conclusion that if probable cause were lacking, the Leon good faith exception would apply. The objections of defendant Servando Garcia are consequently overruled.
Mario Morreno: Warrantless Arrest
The magistrate found that 1) Morreno was initially legally detained; 2) he voluntarily gave officers permission to search his backpack; and 3) he was legally under arrest when officers found packages of methamphetamine in his backpack. Filing No. 34, Report and Recommendation at 24. Morreno strenuously objects to these findings, arguing that the government failed to meet its burden at the suppression hearing of proving that the warrantless search and seizure met Fourth Amendment muster.
Specifically, Morreno argues that the magistrate glossed over inconsistencies in the officers' accounts of his arrest and improperly discounted Marie Smith's credibility. As the factual background related above indicates, the officers differed on whether they had information about Apartment 7 before executing the search warrant for Apartment 4, on when Marie Smith told officers about Apartment 7, on whether and when Lang got Morreno's consent to search his person and Clark got Morreno's permission to search the backpack, and on whether Heath translated the search request into Spanish. Morreno argues that given these inconsistencies, the magistrate should have attached greater weight to Marie Smith's third-party version of events, especially since it contradicted the "friendly, casual, consensual version which the law enforcement witnesses tried, unsuccessfully, to suggest." Defendant Morreno's Brief at 6.
Initial Stop.
The magistrate dismissed as incredible Marie Smith's story that the officers wordlessly slammed Morreno's face into the door of Apartment 7 and took his backpack by force. RR at 20. Rather, the magistrate found that the initial encounter between Morreno and Officer Clark was consensual. I agree, based on the general congruity of the officers' testimony about their encounter with Morreno.
When Clark first engaged him in conversation, Morreno made no attempt to leave or turn away. However, Morreno's act of reaching toward his pants pocket when talking to Clark and then to Officer Lang entitled the officers to conduct a pat-down search for weapons for their own safety. See Terry v. Ohio, 392 U.S. 1, 26 (1968). Morreno makes much of the differences in Clark and Lang's testimony about whether Lang actually asked for Morreno's permission to pat him down, but under Terry, the officers were entitled to conduct a weapons pat down even without Morreno's consent.
The officers were entitled to extend the scope of their search only if, given the totality of the circumstances, they had reasonable suspicion, i.e., "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981). The "whole picture" used to determine whether the officers had "a particularized and objective basis" for detaining a suspect includes "the collective knowledge and experience of the officers." United States v. Chhunn, 11 F.3d 107, 110 (8th Cir. 1993). "Factors that may reasonably lead an experienced officer to investigate include time of day or night, location of the suspect parties, and the parties' behavior when they become aware of the officer's presence." United States v. Dawdy, 46 F.3d 1427, 1429 (8th Cir. 1995). Further, a reviewing court may "consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals." United States v. Beck, 140 F.3d 1129, 1136 (8th Cir. 1998).
The "whole picture" here included Morreno's appearance in the midst of a warranted search that had turned up methamphetamine and weapons, as well as the officers' knowledge that occupants of Apartment 7 might also be involved in drug trafficking — regardless of whether the officers learned about Apartment 7 from a pre-raid briefing or from Marie Smith during the search of Apartment 4. Morreno's quaking legs as he spoke with the officers and his attempts to reach into his pocket only increased their suspicions about Morreno's presence at Apartment 7. The officers therefore had reason to detain Morreno briefly to ascertain his connection to Apartment 7.
Consent to Search.
Warrantless searches and seizures are generally unlawful. Minnesota v. Dickerson, 508 U.S. 366, 372 (1993). Both Lang and Clark testified, however, that Morreno consented to Lang's further search of Morreno's person and Clark's search of Morreno's backpack. Whether a defendant voluntarily consented to a search is a fact question to be determined from all the circumstances. Ohio v. Robinette, 519 U.S. 33, 40 (1996). Here, there is no evidence apart from Marie Smith's testimony that the officers threatened the defendant with violence or coerced him with any sort of promises. See United States v. Zamoran-Coronel, 231 F.3d 466, 469 (8th Cir. 2000) (consent to search is involuntary only when "by explicit or implicit means," the officer obtains it "by implied threat or covert force"). While the officers differed on which of them obtained the consents from Morreno, both were clear that they obtained the consents before they conducted the searches. Further, Clark and Heath both testified that they took the extra precaution of getting Morreno's consent in Spanish before they searched the backpack. I therefore adopt the magistrate's finding that under the totality of the circumstances, Morreno voluntarily consented to the search of his person and of his backpack.
Arrest.
"Probable cause for an arrest exists when the totality of circumstances demonstrates that the arresting officer personally knows or has been reliably informed of sufficient facts to warrant a belief that a crime has been committed and that the person to be arrested committed it." United States v. Reinholz, 245 F.3d 765, 778 (8th Cir. 2001). Having been given valid consent to search Morreno's backpack, the officers had probable cause to arrest Morreno upon discovering packages of methamphetamine inside it. I therefore adopt the magistrate's finding that Morreno's arrest was valid.
Conclusion
The court adopts the magistrate's finding that the information provided by the confidential informant in this case was sufficiently reliable to support probable cause for a search warrant for Apartment 4. The court also adopts the magistrate's findings that defendant Morreno was legally detained, voluntarily consented to a search his backpack, and was legally under arrest when packages of methamphetamine were found in his backpack.
IT IS THEREFORE ORDERED:
1. The findings and recommendations in the magistrate's report and recommendation, Filing No. 34, are hereby adopted;
2. The defendants' objections, Filing Nos. 36 and 38, to the magistrate's report and recommendation are overruled;
3. The defendants' motions to suppress, Filing Nos. 18 and 19, are denied.